- The Washington Times - Friday, May 17, 2002

Federal prosecutors yesterday broke their silence on a federal judge's ruling that the death penalty never again could be constitutional, filing a scathing reply that attacked the judge's logic, his timing and his reading of the law and the Constitution.
"It fundamentally misapprehends the Constitution to use a provision that regulates the procedures by which the government may deprive someone of life to require that defendants may never be deprived of life at all," said the government response.
The Fifth Amendment "specifically contemplates" the use of capital punishment by setting rules for indictment in capital cases and when the government may take a criminal's life, said Assistant U.S. Attorneys David B. Anders and Amy K. Orange.
On April 25, Manhattan U.S. District Judge Jed S. Rakoff said innocent people had been executed and more wrongful deaths were likely.
He ruled that the release of 32 "innocents" from state death rows in 10 years because of criminology advances meant that any execution would violate the Fifth Amendment right to "due process" because any more discoveries would be meaningful "only if such persons are still alive to be released."
The availability of DNA testing decreases, rather than increases, the likelihood of erroneous convictions, said Mr. Anders and Miss Orange, who pointed out that none of the 31 capital convictions under current federal law had been overturned.
U.S. Attorney James B. Comey brushed aside Judge Rakoff's unusual invitation to immediately appeal that April 25 order and instead filed yesterday's point-by-point rebuttal in an effort to persuade the 1995 Clinton appointee to rethink his unprecedented action.
The reply said Alan Quinones and Diego Rodriguez did not claim they were innocent of killing police informant Eddie Santiago in June 1999.
The prosecutors told the judge they "hogtied, tortured and killed Santiago whom they correctly suspected to be an informant" and burned his body in an effort to protect their large-scale heroin and cocaine sales ring in the Bronx. Eight co-defendants pleaded guilty.
Their attorney, Kevin McNally, said he would ask Judge Rakoff to hold an evidentiary hearing on whether innocent men had been freed from death row.
"Up till now, the government had not denied there were many innocent citizens released from death row. Now they're trying to quibble about how many there were," Mr. McNally said.
He said the prosecutors' decision not to appeal the hastily written preliminary order meant that after holding a hearing as he promised to do, Judge Rakoff could assemble a broadly reasoned ruling with more than the one precedent he included, the Supreme Court's 1993 Herrera decision, which prosecutors said contradicted his own reasoning.
"Everything will be before the court including the government's belated claim quibbling with the number of innocent people who've been released," Mr. McNally said.
"Since the Herrera decision, the ground has shifted and the repeated release of innocents from death row changes everything, even though it's state death rows, and even though there was a death penalty at the time the Constitution was written," Mr. McNally said yesterday.
Noting that Judge Rakoff "accepted" a June 2000 report by Columbia University law professor James Liebman that attacked errors in trial and sentencing phases of most murder cases, the government attacked that study as significantly flawed and said Mr. Liebman was a biased death penalty opponent and capital defense lawyer.

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